Voices on the left and right don’t “get” the First Amendment

There’s a reason the Founders codified our rights to free speech, free assembly, a free press and freedom of religion as the First Amendment. They’re first because they’re foundational to what our republic is about.

The rights listed in the First Amendment were a rejection of common practices in the monarchies that the Founders and their ancestors left behind. The government, they decided, cannot tell you how to worship or which churches can operate. The state can’t control the news, or tell groups they’re not allowed to meet.

Government can’t tell you what to say or enforce your silence, either. You can think what you want and, if you choose to, you can say it, print it, and distribute it.

That’s the Civics Class overview of the First Amendment. In practice, our rights present thorny conundrums, and the devil is in the details. But disturbing stories from the left and right make it clear that that too many don’t really understand what the First Amendment protects.

Free speech for all, not just for some
It is the provocative, angry, and sometimes just downright hateful and bigoted speech that tests the limits of the public’s acceptance of free speech rights. At a lower level of vitriol, the UW experienced that earlier this year when Milo Yiannopoulos spoke on campus (back when Milo Yiannopoulos was someone anyone paid attention to). Charlottesville, Virginia experienced it at a far higher level last weekend.

The vast majority of Americans would be sickened to see a neo-Nazi or Klan rally in their own town. Whether it’s white supremacists, “white nationalists” (which, let’s be honest, is just a new way to say segregationists), or some other variety of racists, it turns our stomach to see hate on display.

But there is no doubt that under the First Amendment, they have a right to “peaceably assemble.” That “peaceable” part is key, and in the chaos and violence of Charlottesville, it was difficult to determine who instigated what. All sides felt justified in their actions; it was always “the other guy” that started it.

We’ve seen too many examples on the left this week of those who want government to ban or shut down rallies like this. The arguments center on the idea that any “fascist” gathering is, on its face, an incitement to crime, or is threatening, or represents “verbal assault.”

This follows years of radical elements on campuses and elsewhere adopting the language of violence to describe opponents’ speech and ideas. Opposing viewpoints are labeled “assault,” unpleasant interactions are deemed “violence.” They’re not.

These ideas are taking root in students, unfortunately. 40% of young people in a 2015 poll supported limiting speech that is offensive to minorities. Too few see that the answer is in countering hateful ideas with better ideas, not in having the authorities decide what can and cannot be expressed.

That’s banana republic, tin-pot dictator-type stuff. That urge – toward “enforcing” the politically correct – is one reason we have the First Amendment.

Who decides what is “fake news”?
Just as disturbing is a recent YouGov poll commissioned by The Economist:

“When YouGov asked whether courts should be allowed to ‘shut down news media outlets for publishing or broadcasting stories that are biased and inaccurate’, 45% of Republicans were in favour, compared with 20% who opposed the measure. More than half thought it acceptable to fine an offending news outlet (and 40% thought it would not violate the First Amendment to do so).”

That is disappointing in the extreme. I doubt 45% of Republicans actually think this is a good idea; more likely, many of the survey respondents saw it as a way to indicate antipathy toward the news media. It’s still troubling. And it’s tough to dismiss, considering the fact that respondents were specifically asked if fining the media would violate the First Amendment and 40% indicated they thought not.

Yep, that’s banana republic, tin-pot dictator-type stuff too. Having government evaluate and punish the media not only clearly violates the First Amendment, it’s just a bad idea. Do you want this administration deciding, in an official capacity, what is fake news? Do you want the next? That’s the road to Kremlin-style controlled media.

Clearly the old saying “I disapprove of what you say, but I will defend to the death your right to say it” has gone out of style with many on the right and left. The norms of today will influence how the courts of tomorrow approach First Amendment questions. Free speech defenders everywhere need to exercise their rights and stand up for the First Amendment vigorously – too many aren’t getting the message.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.